0120061703
06-29-2007
Loretta Randel, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Loretta Randel,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01200617031
Agency No. 03-0281-SSA
DECISION
Complainant filed an appeal with this Commission from the December 14,
2005 agency decision finding no discrimination.
Complainant alleged that the agency discriminated against her on the basis
of reprisal for prior protected EEO activity when: (1) on December 19,
2002, complainant received a decision to suspend her from duty for three
calendar days without pay, effective January 22, 2003 through January 24,
2003; and (2) complainant was subjected to a hostile work environment
when the Richmond Teleservice Center (TSC) Manager (Supervisor A)
committed repeated acts of harassment against her.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). The agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b) when complainant
did not respond within 30 days of receipt of the report of investigation.
In its decision, the agency concluded that complainant was suspended
because she failed to observe proper standards of conduct when she
directed a co-worker to access the computer system on her behalf in
violation of agency regulations. The agency noted in its decision that
it had dismissed claim 2 for failure to state a claim of harassment in a
partial dismissal. The June 10, 2003 partial dismissal of the complaint
reflects that the agency dismissed claim 2 on the grounds that no adverse
action had been taken against complainant and that the record failed to
show that complainant's claim rose to a level of an actionable hostile
environment.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a).
To establish a prima facie case of harassment, a complainant must show
that: (1) complainant belongs to a statutorily protected class; (2)
complainant was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) some basis exists to impute liability to the employer, i.e.,
supervisory employees knew or should have known of the conduct but failed
to take corrective action.
Harassment of an employee which would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or in
reprisal is unlawful. A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
To determine whether a work environment is objectively hostile or
abusive, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Accordingly,
harassment is actionable only if the harassment to which the complainant
has been subjected to was sufficiently severe or pervasive to alter the
conditions of complainant's employment.
Complainant can establish a prima facie case of reprisal discrimination
by showing that: (1) complainant engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
complainant was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, complainant must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
In establishing pretext, complainant may show directly that a
discriminatory reason more likely motivated the agency or indirectly,
by showing that the agency's proferred explanation is unworthy of
credence. Although the burden of production, in other words, "going
forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Pretext can be demonstrated by "showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [Agency's]
proffered legitimate reasons for its action that a reasonable fact finder
could rationally find them unworthy of credence." Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted).
"Mere conjecture that [the] employer's explanation is a pretext for
intentional discrimination is ... insufficient." Branson v. Price River
Coal Co., 853 F.2d 768, 772 (10th Cir. 1988); see also George v. United
States Postal Service., EEOC Appeal No. 01A31214, (July 28, 2003).
A finding that one explanation by an agency for a personnel action is
invalid does not mandate a finding that the act was discriminatory; all
the agency's proffered reasons must be examined. See Sims v. Cleland,
813 F.2d 790, 793 (6th Cir. 1987); Pollan v. United States Postal Service,
EEOC Request No. 05891093 (January 19, 1990).
In her affidavit, complainant stated that she had custody of her
daughter's two children, when her daughter died in July 2002. She also
stated that she was not sure how much covered employment her daughter
had to pay children's benefits for her children. Complainant stated
further that on August 12, 2002, she asked the Technical Assistant to
make an appointment for her with the agency's Richmond's office and
gave the Technical Assistant her daughter's social security number.
She stated that while she was with the Technical Assistant, the Technical
Assistant told her that she always checked social security numbers before
making appointments and complainant told the Technical Assistant that the
Technical Assistant might be violating agency sanctions by doing that.
Complainant stated that the appointment was made by the Technical
Assistant and that the Richmond office would have to call her desk for
an interview regarding the claim. She stated further that she informed
Supervisor A that she was going to file the claim by telephone from
her desk and Supervisor A requested a leave slip for the interview time
which complainant provided.
In her affidavit, complainant stated that she was not a supervisor and
that Supervisor A had informed her that when she was reassigned to her
current position in January 2002, that her position did not entail
supervisory duties. She stated that Supervisor A blew the incident
out of proportion because she resented that complainant had received a
favorable settlement in her EEO complaint.
In a statement accompanying her complaint form, complainant stated that
she had gone to Supervisor A's office to tell her that she had had the
Technical Assistant make an appointment. She stated that Supervisor A
told her that complainant had probably violated the rules and she told
Supervisor A that she did not think so because she had only asked the
Technical Assistant to make an appointment. She stated that Supervisor
A never asked her any more about the issue.
In her affidavit, the Technical Assistant stated that she had revealed
her actions in accessing the system to her supervisor (Supervisor C)
and discussed the incident with Supervisor A. She further stated that
complainant asked her to do her a favor and set up an appointment for
complainant to file for survivor benefits for her deceased daughter's
children. The Technical Assistant stated that complainant stated that
she did not want to call the toll free 800 number because she knew
everyone in the Richmond TSC but she trusted the Technical Assistant.
She stated that complainant was her superior and because of her
compassion for complainant's recent loss, she set up the claim for
complainant by entering the social security numbers of complainant's
deceased daughter and her children. The Technical Assistant stated
that this action immediately identified her (Technical Assistant) and
entered her name on the claim. She stated further that if complainant
had entered her daughter's social security number, complainant's name
would have shown on the claim and the system's checks and balances
would have noted the relationship because of the deceased daughter's
maiden name. She stated that once she entered the data and the checks
and balances were cleared, the claim went through the system to the
district office for an appointment where detailed information would be
provided to complete the claim. The Technical Assistant further stated
that she let compassion for complainant overrule her good judgment and
the next day she told her Supervisor C what she had done, expecting to
be reprimanded or suspended for her "lapse in judgment."
The record reveals that the Technical Assistant was issued a reprimand by
Supervisor C for failure to observe proper standards of conduct, i.e.,
that the Technical Assistant involved herself in processing a claim on
behalf of a co-worker. The reprimand, which is contained in the record,
reflects that the reprimand would remain in the Technical Assistant's
official personnel folder and her SF-7B Extension file for up to one year.
In issuing the reprimand, Supervisor C stated that he considered the
Technical Assistant's years of service, lack of prior discipline, the fact
that she came forward voluntarily one day after the violation to report
the incident, and that complainant for whom she accessed the system was
a supervisor, although not the Technical Assistant's supervisor.
In her affidavit, Supervisor A stated that it was she who proposed the
five-day suspension of complainant and that the proposal to suspend had
nothing to do with complainant's prior EEO complaint. She stated that
Supervisor C informed her that the Technical Assistant had come to him
stating that she feared that she had made an improper access of the
system on complainant's behalf. Supervisor A stated that complainant
had asked the Technical Assistant to make an appointment for her to file
for benefits for her deceased daughter's children. Supervisor A stated
further that employees were not to use their positions within the agency
to obtain a service not afforded the public and when employees file for
Social Security benefits, employees were expected to follow the same
procedures as any other member of the public. She stated that it was
particularly egregious to ask another employee to violate procedures.
Supervisor A further stated that complainant was well aware of this policy
because she had been a first-line supervisor for many years and had had
to explain the concept to employees under her supervision repeatedly.
Supervisor A also stated in her affidavit that she did not believe that
any employees viewed complainant as a non-management employee even though
employees were aware that complainant was not a first line supervisor
in her current position. She stated that when complainant asked the
Technical Assistant to make the appointment for her, the Technical
Assistant viewed complainant as a management superior. Supervisor A
stated that she recommended a five-day suspension because complainant
had been a party to numerous management discussions about how agency
employees should conduct business with the agency and complainant was
aware that several TSC employees needed to conduct personal business
with the agency on a regular basis and that these employees had to go
to a local office or use the toll free telephone number.
The record contains the affidavit of the Assistant Regional Commissioner
for Management and Operations Support, San Francisco Region (RC) who
issued the decision suspending complainant for three days. He stated
that complainant had used her position of authority to have a subordinate
employee inappropriately access her daughter's social security number and
establish an appointment for her to file for benefits for complainant's
grandchildren. The RC stated that complainant's action was clearly a
misuse of her supervisory/managerial responsibility which could not be
overlooked. He also stated that Supervisor A told him that complainant
admitted her actions when Supervisor A "confronted" complainant a few days
after the incident after the "subordinate employee" informed Supervisor
A of complainant's inappropriate actions. The RC also stated that
Supervisor B proposed to suspend complainant for five days without pay
but that he reduced the suspension to three days after considering other
mitigating factors. He also stated that he was unaware of any other
instance of a supervisory employee ordering a subordinate to violate
agency policy in the region. The record does not contain any evidence
reflecting any discipline issued by the RC under similar circumstances.
Regarding claim 2, complainant alleged that Supervisor A frequently went
out of her way to come by complainant's work station to speak to her as
if she were concerned about complainant's welfare, but Supervisor A was
only trying to annoy complainant. In her affidavit, Supervisor A stated
that she had spoken to complainant every day since she has known her and
did not see any reason to stop. Supervisor A stated that she was very
"genuinely concerned" about complainant and a friendly greeting is her
way of expressing that concern. She stated that she was saddened that
complainant would regard her greeting as harassment.
Regarding claim 1, the Commission finds that complainant was suspended
because she had a co-worker make an appointment for her in violation of
agency rules. Complainant has failed to show that the agency's reason
for suspending her was pretextual and that the agency was motivated by
discriminatory animus. Regarding claim 2, the Commission finds that
the incidents cited complainant are insufficiently severe or pervasive
so as to alter the terms and conditions of her employment and thereby
constitute a hostile work environment. Furthermore, complainant has
not shown that any of the alleged harassing incidents were motivated
by discrimination.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your
time in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 29, 2007
__________________
Date
1 Due to a new data system, this matter has been re-designated with the
above-referenced appeal number.
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0120061703
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120061703